Crosby, J.
This is a suit by the guardians of Helen B. Andrews, an insane person, to set aside two deeds of certain real estate owned by the ward, and to recover certain personal property which is not involved in this appeal. The ward has been admitted as an intervening party.
The real estate was conveyed by the insane person to the defendant Larrabee for a nominal consideration, and on the same date for a like consideration was conveyed by him to the insane person and to the defendant Weston and the survivor of them and their heirs and assigns. The defendant White has attached the real estate as the property of the defendant Weston in an action brought by her against him and has recovered a judgment in that action. The trial judge found that the ward was mentally incompetent when she made the conveyance to Larrabee, and that the defendant Weston knew of her mental condition when the deed was executed. No question of ratification by the grantor arises as there is nothing to show that she has ever recovered her reason.
It is well settled in this Commonwealth that the deed of an insane person is ineffectual to convey a title to land, good against the grantor, or his heirs and devisees, unless it is confirmed by the grantor himself when of sound mind, or by his legally constituted guardian, or by his heirs or devisees. Valpey v. Rea, 130 Mass. 384. Allis v. Billings, 6 Met. 415. Gibson v. Soper, 6 Gray, 279. Brigham v. Fayerweather, 144 Mass. 48. Brown v. Brown, 209 Mass. 388, 394.
While some confusion has arisen by reason of the use of the terms “void” and “voidable,” it is settled in this Commonwealth that the deed of an insane person is not void, but voidable, and may, after the grantor is restored to his right mind, be adopted and ratified. Allis v. Billings, supra. Gibson v. Soper, supra. Sutcliffe v. Heatley, 232 Mass. 231.
As a contract made by an insane person is voidable, it is not affected by the circumstance that the other party acted fairly and without knowledge of the want of mental capacity or of circumstances which ought to have put him on inquiry, because he who deals with one who is insane or with an infant does so at his peril. Seaver v. Phelps, 11 Pick. 304. Brigham v. Fayerweather, supra. Sutcliffe v. Heatley, supra. Reed v. Mattapan Deposit & Trust Co. 198 Mass. 306, 314.
The question, whether an innocent purchaser from the grantee of an insane person is entitled to hold under his deed, is one which has not been decided by this court. It is the contention of the defendant White that, as she had no knowledge of the mental incapacity of the ward, she was justified in relying upon the record when she attached the property, and therefore is in the position of an innocent purchaser for value. R. L. c. 127, § 4. R. L. c. 167.
We are of opinion that, while an attaching creditor is in the position of a purchaser for value, Waltham Co-operative Bank v. Barry, 231 Mass. 270, yet under the circumstances here disclosed, the defendant White obtained by the attachment no greater rights in the land than the judgment debtor and grantee had, and, the deed being voidable as to him, is equally voidable as to her. On principle there can be no sound distinction between the right of the guardian of an insane person to avoid a deed as against the grantee of the ward, and one to whom the land has been subsequently conveyed. By a parity of reasoning, the right of a subsequent purchaser for value to hold the land would seem to be no greater than that of the original grantee who took title without knowledge of the grantor’s mental incapacity.
The purchaser of an apparently perfect record title is not protected against all adverse claims; it may.be bad because the grantor may have been insane, or an infant, or because title has been defeated by adverse possession. A grantee cannot assume that the previous grantors had legal capacity to convey, but must take at the risk of all through whom his title has passed. He must rely upon the covenants of his deed. The absolute and paramount right of infants and insane persons to avoid their contracts may be exercised against an innocent purchaser for value from the grantee, otherwise the law will fail to afford that measure of protection to the mentally helpless and incompetent which their condition justly requires. Hovey v. Hobson, 53 Maine, 451. Rogers v. Blackwell, 49 Mich. 192. McKenzie v. Donnell, 151 Mo. 461. Hull v. Louth, 109 Ind. 315. Dewey v. Allgire, 37 Neb. 6. Wirebach v. First National Bank of Easton, 97 Penn. St. 543, 550, 551. Gates v. Carpenter, 43 Iowa, 152. Campbell v. Campbell, 35 R. I. 211, 215. Williams v. Sapieha, 94 Texas, 430. Burke v. Allen, 29 N. H. 106. Elder v. Schumacher, 18 Col. 433. This conclusion is in harmony with those decisions which hold deeds of lunatics void rather than voidable. Dexter v. Hall, 15 Wall. 9. Farley v. Parker, 6 Ore. 105, 111. Goodyear v. Adams, 5 N. Y. Supp. 275, affirmed in 119 N. Y. 650. Harris v. Jones, 188 Ala. 633. McEvoy v. Tucker, 115 Ark. 430, 436. Sullivan v. Flynn, 20 D. C. 396, 401. Van Deusen v. Sweet, 51 N. Y. 378, 384. See however, McCarthy v. Bowling Green Storage & Van Co. 182 App. Div. (N. Y.) 18, 22, 23. Of course no title whatever can pass by a void instrument.
While it was held in the recent case of Waltham Co-operative Bank v. Barry, supra, that an attaching creditor was an innocent purchaser for value of land although a mortgage thereon had by mistake been discharged on the margin of the record by the mortgagee, R. L. c. 127, § 34, that case is not authority in support of the contention of the defendant White. Somes v. Brewer, 2 Pick. 183, and similar cases, where it is held that conveyances procured by fraud may be set aside, are plainly distinguishable from the case at bar. "
We are unable to follow the decisions of courts in other juris dictions which hold that the deed of an insane person cannot be avoided as against a bona fide purchaser from his grantee. See Burch v. Nicholson, 157 Iowa, 502; Campbell v. Kerrick, 142 Ky. 279; Odom v. Riddick, 104 N. C. 515; Greenslade v. Dare, 20 Beav. 284; Elliot v. Ince, 7 De G., M. & G. 475; Matthiessen & Weichers Refining Co. v. McMahon, 9 Vroom, 536, 544; National Metal Edge Box Co. v. Vandeveer, 85 Vt. 488; Coburn v. Raymond, 76 Conn. 484.
The decree is to be affirmed with costs.
So ordered.